Judge rejects request to toss out fingerprints

He `respectfully' disagrees with ruling barring them

An attorney for a man charged with murder in an armed robbery in the Woodlawn area asked a judge yesterday to throw out fingerprint evidence in what appears to be the first request of its kind since a Baltimore County judge ruled that such evidence is too unreliable to be presented in a death penalty trial.

Later, he said, "In this case, a jury is going to be the trier of the facts."

Cavanaugh, who has developed a reputation for dispensing tough sentences and tough comments to defendants, said he had read and "respectfully" disagreed with the decision of Judge Susan M. Souder.

She ruled Oct. 19 that prosecutors in a capital murder case could not offer at trial the fingerprint evidence that they say links a 23-year-old Baltimore man to the fatal shooting of a Security Square Mall merchant last year in the shopping center's parking lot.

In her 32-page decision, Souder characterized fingerprinting as "a subjective, untested, unverifiable identification procedure that purports to be infallible." The judge acknowledged the technique's nearly 100-year record as a crime-solving tool but concluded that such history "does not by itself support the decision to admit it."

Local and national experts characterized Souder's ruling as unprecedented and predicted a flurry of similar requests from defense attorneys challenging fingerprint evidence, which has long been considered a mainstay of police work.

Prosecutors in Baltimore and in Baltimore County said yesterday that they knew of no such challenges except the motion heard by Cavanaugh.

In that case, defense attorney Jane Loving told prosecutors late last week that she intended to challenge the fingerprint evidence at the heart of the murder case against her client, Kevin Banks.

"I think Judge Souder made some wonderful points," Loving said after yesterday's hearing. "But [Cavanaugh] had her opinion in front of him, and he just doesn't buy it."

Banks, 22, of West Baltimore was arrested in May after investigators matched his fingerprints to seven latent prints left on the trunk and windshield of a car parked at the scene of a fatal shooting in March.

Jamar Mackie, 24, was killed March 31 after he and two friends were robbed by two men with a 9 mm handgun.

Witnesses told police that one of the robbers opened fire after Mackie and a friend began to run. The gunman and his friend were chased by a pit bull on the way back to their car, a burgundy Buick LeSabre, according to court documents. Witnesses told police that the robber without the gun jumped onto the trunk of a another car parked nearby to escape the dog.

Craig S. Schrott, a Baltimore County homicide detective, testified yesterday at the pretrial hearing that the car was covered in dust and that fresh fingerprints were clearly visible.

The prints lifted from the car - including a palm print - were not linked to Banks until detectives in Baltimore questioned him about a nonfatal shooting there four days before the Woodlawn homicide, Schrott said in court.

After finding that the city shooting involved men who fired at least 17 shots from two 9 mm handguns and fled in a burgundy Buick LeSabre, county police asked their fingerprint analysts to compare the prints lifted from the Woodlawn crime scene to those of the suspects in the city case. That's when Banks' fingerprints were matched to those lifted from the dusty car, Schrott testified.

Banks is not accused of firing a gun in the Woodlawn-area killing but is charged, along with a co-defendant, with first-degree murder, armed robbery and handgun offenses.

In declining to grant the defense attorney's request to bar the presentation of the fingerprint evidence against Banks to a jury, Cavanaugh mentioned the "abundance of cases" in Maryland in which judges have upheld the reliability of such evidence.

Echoing a point raised in prosecutors' request to Souder to reconsider her ruling, Cavanaugh compared fingerprints to X-rays.

"Do you want to attack them next?" the judge asked Loving, the defense lawyer. "You can take X-rays to three different doctors and get three different readings."